TMI Blog2018 (4) TMI 1738X X X X Extracts X X X X X X X X Extracts X X X X ..... authorized under the Act to make a reference to the DVO for ascertaining the fair market value of the property as on 1st April 1981. That being the case, the only alternative left with the AO is to grant the benefit of indexation on account of cost of acquisition as per section 55(2). In the present case, the assessee in exercise of option granted under section 55(2) having adopted the fair market value as on 1st April 1981, the same has to be accepted in the absence of any other value available with the Assessing Officer. To a pertinent question from the Bench the learned Departmental Representative fairly submitted that in case the fair market value of the property as on 1st April 1981 as declared by the assessee is adopted for indexation purpose, resultant long term capital gain will be a negative figure as per the working submitted by the assessee. No infirmity in the order of the Commissioner (Appeals) as it is in conformity with the ratio laid down by the Hon'ble Jurisdictional High Court in Puja Prints [ 2014 (1) TMI 764 - BOMBAY HIGH COURT] . Thus, we uphold the decision of the learned Commissioner (Appeals) on this issue by dismissing the ground raised by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and for the purpose of existence of the assessee firm. Accordingly, he allowed deduction of ₹ 11,82,173 under section 57(iii) of the Act. 6. Learned Departmental Representative relied upon the observations of the Assessing Officer. 7. Heard the learned Departmental Representative and perused the material on record. As could be seen from the facts narrated by the learned Commissioner (Appeals), though, in the impugned assessment year, no business has been carried out by the assessee, however, the assessee has not totally closed down its business, therefore, had to incur certain regular expenditure by way of staff salary, maintenance of factory premises, interest of loan, etc. He also found that the genuineness of expenditure incurred was never doubted by the Assessing Officer. Thus, the learned Commissioner (Appeals) concluded that, since, the expenditure incurred was for maintaining the existence of the firm as well as earning of the interest income, it is to be allowed. Learned Departmental Representative has failed to controvert the aforesaid finding of the learned Commissioner (Appeals) by bringing material on record. Therefore, we uphold the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value shown by the assessee is more than the market value. 10. Learned Departmental Representative, though, agreed that as per the decision of the Hon'ble Jurisdictional High Court in CIT v/s PUja Prints, 360 ITR 397 (Bom.), the Assessing Officer has no power to make a reference to the DVO to determine the fair market value of cost of acquisition in a case where the value adopted by the assessee is more than the fair market value, however, he wanted to rely upon the observation of the Assessing Officer. 11. We have heard the learned Departmental Representative and perused material on record. As far as the factual aspect relating to the disputed issue are concerned, there is no dispute that the assessee in the relevant previous year has sold the immovable for a declared sale consideration of ₹ 2 crore. After verifying the registered sale deed, the Assessing Officer having found that the stamp duty authority has determined the value of the property at ₹ 8,80,59,000, for stamp duty purpose proposed to determine the long term capital gain under the provisions of section 50C(1). However, at that stage, the assessee submitted a working of long term c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see is less than its fair market value, the Assessing Officer can make a reference to the DVO under section 55A of the Act. Thus, as per existing provisions of section 55A applicable to assessment year 2009 10, the Assessing Officer has power to make a reference to the DVO for ascertaining the fair market value if the value declared by the assessee is less than the fair market value. The facts of the present case are different, since, the value adopted by the assessee is more than the fair market value as per the opinion of the Assessing Officer. That being the case, the Assessing Officer had no power under section 55A to ascertain the fair market value by making a reference to the DVO. Of course, by amendment effected to section 55A by Finance Act, 2012 w.e.f 1st July 2012, the Assessing Officer can make a reference to the DVO under section 55A if in his opinion there is a variance between the value adopted by the assessee and fair market value. However, such amendment brought to section 55A of the Act will apply prospectively. The Hon'ble Jurisdictional High Court in Puja Prints (supra), while dealing with identical nature of dispute held that as per the provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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